394 F.

3d 8

Wissam SUCCAR, Petitioner,

v.
John ASHCROFT, Attorney General, Respondent.
No. 03-2445.

United States Court of Appeals, First Circuit.

Heard October 7, 2004.
Decided January 5, 2005.

Saher J. Macarius for petitioner.

Anthony P. Nicastro, with whom Peter D. Keisler, Assistant Attorney
General, Civil Division, Barry J. Pettinato, Senior Litigation Counsel, and
Anthony C. Payne, Attorney, Office of Immigration Litigation, Civil
Division, United States Justice Department, were on brief, for respondent.
Mary Kenney, with whom Nadine K. Wettstein, American Immigration
Law Foundation, Iris Gomez, and Massachusetts Law Reform Institute
were on brief, for The American Immigration Law Foundation,
Massachusetts Law Reform Institute, Massachusetts Immigrant and
Refugee Advocacy Coalition, International Institute of Boston, and The
Harvard Immigration and Refugee Clinic of Greater Boston Legal
Services, amici curiae.
Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, LIPEZ,
Circuit Judge.
LYNCH, Circuit Judge.

This case raises issues of first impression in immigration law as to the validity
of a regulation promulgated in 1997 by the Attorney General, 8 C.F.R.
245.1(c)(8). The regulation redefines certain aliens as ineligible to apply for
adjustment of status to lawful permanent residents whom a statute, 8 U.S.C.
1255(a), defines as eligible to apply. Under that regulation, the Attorney
General will not consider an application for adjustment of status from the entire
category of aliens who have been granted parole status but have been placed in

removal proceedings.
2

The essence of the Attorney General's argument is that since he has been given
ultimate discretion to deny adjustment of status after application, the validity of
the regulation is itself not subject to judicial review, and, if it were, the
regulation must be upheld as a permissible exercise of that ultimate discretion.
We disagree on both points. We hold that there is no statutory bar to review and
that the regulation is contrary to the language and intent of the statute, 8 U.S.C.
1255(a). As a result, we vacate the order removing Wissam Succar from the
United States and remand for further proceedings.

Our reasons, which we explain in more depth below, are as follows. The mere
fact that a statute gives the Attorney General discretion as to whether to grant
relief after application does not by itself give the Attorney General the
discretion to define eligibility for such relief. That is clear from INS v. CardozaFonseca, 480 U.S. 421, 443, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Courts
must still interpret the statute. Where the statute is silent on eligibility, the
agency involved may reasonably choose to exercise its discretion to withhold
relief by excluding certain persons from eligibility for such relief. Lopez v.
Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L.Ed.2d 635 (2001).

Here, the statute is not silent it defines persons who have parole status as
eligible for adjustment of status and does not carve out an exception for
parolees who are in removal proceedings. See 8 U.S.C. 1255. That lack of a
carve out for parolees in removal proceedings is itself significant, given that the
statute contains a number of carve outs as to eligibility for adjustment of status.
Some carve outs exclude persons from eligibility to apply who would otherwise
meet more general eligibility requirements. Further, other carve outs create
eligibility in persons otherwise ineligible. Congress thus has created a
comprehensive scheme.

Viewing the larger statutory context, we find Congress has also been explicit
about where the Attorney General has been granted discretion and where he has
not. By contrast with other areas, there is no explicit grant of discretion to
redefine eligibility to apply for adjustment of status of parolees to exclude those
in removal proceedings. Congress did not place the decision as to which
applicants for admission are placed in removal proceedings into the discretion
of the Attorney General, but created mandatory criteria. See 8 U.S.C.
1225(b)(1), (2). In addition, persons cannot be granted paroled status at all if
they pose a security risk; they are to be ordered removed and this order must be
reported to the Attorney General. 8 U.S.C. 1255(c)(1).

The statutory scheme reflects Congress's careful balancing of the country's

security needs against the national interests Congress wished to advance
through adjustment of status proceedings. The regulation upsets the balance
Congress created.

Checking our construction of the statute against the legislative history of

section 1255, we find the regulation to be inconsistent with the intent expressed
in the statute. In 1960, when Congress included paroled aliens as aliens who are
eligible for adjustment of status relief through section 1255, it did so to solve
certain problems, which we describe later. The effect of the regulation is to reinstitute the problems Congress wished to solve. Further, until the 1997
promulgation of the regulation, the Attorney General had consistently
interpreted section 1255 in a manner consistent with the statute and the
legislative history and inconsistent with the 1997 regulation.

In response to the Attorney General's argument that the 1996 enactment of the
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)
justifies the 1997 regulation, we note the Attorney General's concession that
IIRIRA, which altered so much of the immigration laws, left untouched the
language of section 1255, as enacted in 1960, on the matter in question. That
being so, the relevance of the Attorney General's remaining arguments, largely
based on general policy said to be embodied in IIRIRA, is doubtful. To the
contrary, IIRIRA tends to strengthen, not weaken, the petitioner's claim that the
regulation is invalid. Finally, the purported policy justifications of expediting
removal of aliens and administrative ease must give way to clear congressional
intent.

I.
9

Wissam Succar is a native and citizen of Lebanon. Succar arrived at Miami

International Airport on October 21, 1998, when his flight from Lebanon to
Panama stopped in the United States. He approached an official at the airport,
stating that he wished to apply for asylum.

10

An immigration officer questioned Succar at the airport. Because Succar did

not have the proper documentation for admission, he was taken into
government custody and held at the Krome detention facility in Miami, Florida.
An asylum pre-screening officer met with Succar on November 19, 1998, and
determined that he had a credible fear of persecution based on his involvement
with the Christian militias in Lebanon. The officer found that the facts as
recounted by Succar could establish his eligibility for asylum and a credible
fear of harm on the basis of an imputed political opinion. Succar was placed

into removal proceedings and was subsequently paroled into the United States
on November 30, 1998. Succar has remained in parole status.
11

Over one year later, on January 19, 2000, Succar admitted the allegations in the
Notice to Appear and conceded removability; he renewed his application for
asylum, withholding of removal, and protection under the Convention Against
Torture. On March 1, 2000, a hearing was held on his asylum application and
the trial was set for April 18, 2000. On April 18, after a hearing on the merits
of his application, the Immigration Judge (IJ) denied Succar's request for
asylum and withholding of removal. Succar appealed this decision to the Board
of Immigration Appeals (BIA).

12

On February 19, 2001, while his appeal was pending before the BIA and while
he was paroled into the United States, Succar married a United States citizen.
Succar's wife filed an immigrant visa petition for him, and the petition was
approved on April 26, 2001. The approval form directed Succar to contact the
local INS office to obtain Form I-485, the application for adjustment of status
to a permanent resident. Believing that he met the statutory eligibility
requirements for adjustment of status, on October 17, 2001, Succar filed a
motion with the BIA to remand the proceedings to the IJ for consideration of
his application for adjustment of status under 8 U.S.C. 1255(a). This motion
was unopposed by the INS.1 The BIA granted the motion on December 18,
2001 and remanded the case to the IJ for further proceedings. The remand
proved to be fruitless for the INS soon took the position that under 8 C.F.R.
245.1,2 Succar was ineligible to apply for adjustment of status either before the
IJ in the removal proceedings or, separately, before the Immigration Service's
district director.

13

At a July 29, 2002 hearing, Succar submitted his adjustment of status

application to the IJ. In the middle of the hearing, the IJ stated that based on 8
C.F.R. 245.1, "I am confident that I don't have the authority to adjust status to
someone who's an arriving alien." The IJ denied the adjustment of status
application as a matter of law, and then continued, "The Immigration Service
doesn't have the authority to adjust his status unless they are willing to
terminate this case with me and if that be the case, I'll happily do it but I don't
have the authority to terminate...." In his oral decision of the same day, the IJ
stated:

14

The respondent is an arriving alien and, therefore, he is not eligible to adjust

status before the Immigration Judge. Additionally the respondent is not eligible
to adjust status before the District Director of the Immigration Service in that he
is in [removal] proceedings. As I indicated to both counsel, if the Immigration

Service wished to have me terminate these proceedings or even to conditionally

terminate them, I would have done so in order to afford the Immigration
Service an opportunity to see whether an adjustment of status ought to be
granted. However, that was not agreed to by the Immigration Service counsel.
15

The regulations provide under 8 C.F.R. Section 245.1(c)(8) that any arriving
alien who is in removal proceedings pursuant to Section 235(b)(1) or Section
240 of the Act is ineligible to adjust status.

16

The IJ also reaffirmed the previous order of removal to Lebanon.

17

The petitioner appealed both parts of the IJ's decision to the BIA, and on
September 24, 2003, the BIA affirmed the IJ's determination in full. On the
adjustment of status issue, the BIA concurred with the IJ that Succar was
"ineligible for adjustment of status because he is an "arriving alien."3 Succar
timely appealed the BIA's decision to this court.

II.
18

We set the issues in the broader context of the requirements of immigration

law.
A. Classes of Aliens

19

Before 1996, non-citizens were divided into two categories: (a) applicants for
admission and (b) non-citizens present in the United States who had previously
made an entry into the country either with, or without, an inspection. An
applicant for admission, also called an arriving alien, was an individual seeking
admission who had not yet entered the country.4 After an inspection, if an
applicant was not admitted, he or she was subject to an exclusion proceeding to
determine admissibility into the United States. The second category, noncitizens who had previously made an entry, were treated as being present in the
United States. They were subject to deportation proceedings to determine
whether they would be deported or admitted to stay.

20

In 1996, Congress passed IIRIRA. See generally Reno v. American-Arab AntiDiscrimination Comm., 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999);
Goncalves v. Reno, 144 F.3d 110 (1st Cir.1998). Among many other changes,
Congress eliminated the definition of the term "entry" and replaced it with the
terms "admission" and "admitted." See IIRIRA, Pub.L. No. 104-208, 110 Stat.
3009-575 (1996). Admission and admitted now include only "the lawful entry

of the alien into the United States after inspection and authorization by an
immigration officer." 8 U.S.C. 1101(a)(13)(A)(emphasis added). The main
impact of this change is to re-characterize aliens who are present in the United
States, but who have not been inspected and admitted. They are now considered
"applicants for admission" along with other arriving aliens. The statute requires
that all aliens who are seeking admission or readmission to the United States be
inspected by immigration officers, prior to a determination of their status. See 8
U.S.C. 1225(a)(3).
21

Congress also eliminated deportation and exclusion proceedings and replaced

them with removal proceedings, which were applicable to all aliens who were
(1) in the United States without an inspection, (2) inspected and not admitted,
or (3) previously admitted but now subject to removal. See 8 U.S.C. 1225(b)
(2), 1227(a). Special removal proceedings were established for two types of
individuals arriving in the United States: those who are (1) suspected of being
terrorists or a security threat, 8 U.S.C. 1225(c), or (2) stowaways, 8 U.S.C.
1225(a)(2). Congress established expedited removal proceedings for arriving
non-citizens who are charged as inadmissible due to lack of proper documents
or material misrepresentations at entry. See 8 U.S.C. 1225(b)(1). Expedited
removal proceedings provide little opportunity for relief; however, aliens in this
situation can seek asylum. See 8 U.S.C. 1225(b)(1)(A). If the alien alleges a
credible fear based on one of the statutory grounds, she receives an interview
with an asylum pre-screening officer. If the officer finds that she has alleged
facts sufficient to justify a credible fear, then the alien will be referred to an
immigration judge. 8 C.F.R. 235.3(b)(4); 8 C.F.R. 235.6(a)(1)(ii).

22

The last type of proceeding is the standard removal proceeding for persons
present in the United States, regardless of whether they are applicants for
admission or have been living in the United States previously. 8 U.S.C.
1225(b)(2); 8 U.S.C. 1229a. Congress did not restrict the type of relief
available to individuals in removal proceedings under section 1229a.
Significantly, the statute does not by its terms prevent this class of individuals
from applying for adjustment of status.
B. Adjustment of Status

23

Adjustment of status is "a technical term describing a process whereby certain

aliens physically present in the United States may obtain permanent resident
status ... without leaving the United States." 3B Am.Jur.2d Aliens & Citizens
2134. Before 1960, adjustment of status in the United States was only available
to non-citizens legally in the country. See Immigration and Nationality Act,
Pub.L. No. 414, 66 Stat. 217 (1952)(INA). Any immigrant present in the

United States who was eligible for adjustment of status, but who was no longer
in valid immigration status, had to obtain an immigrant visa at a United States
post abroad in order to obtain permanent resident status. See S.Rep. No. 861651 (1960), reprinted in 1960 U.S.C.C.A.N. 3124, 3136. To process the
immigrant visa at the consular post abroad, an immigrant residing in the United
States had to apply to the INS for preexamination and voluntary departure in
order to insure that he would be able to be readmitted into the country once he
obtained the immigrant visa. See id.
24

In 1960, Congress established the current procedure for adjustment of status to

obviate the need for departure and reentry for aliens temporarily in the United
States. Congress explicitly expanded the group of individuals eligible for
adjustment of status to include all aliens who have been "inspected and
admitted or paroled." See Joint Resolution of July 14, 1960, Pub.L. No. 86-648,
74 Stat. 505 (codified as amended at 8 U.S.C. 1255(a)) ("The status of an
alien ... who was inspected and admitted or paroled into the United States may
be adjusted by the Attorney General, in his discretion and under such
regulations as he may prescribe, to that of an alien lawfully admitted for
permanent residence....") (emphasis added).

25

"Admitted aliens" means individuals who have presented themselves for

inspection by an immigration officer and who have been allowed to enter the
country. See 8 U.S.C. 1101(a)(13)(A). "Paroled aliens" are otherwise
inadmissible aliens who are given permission by the Attorney General to enter
temporarily. 8 U.S.C. 1182(d)(5)(A). The statute governing parole states:

26

The Attorney General may, except as provided in subparagraph (B) or in

section 1184(f) of this title, in his discretion parole into the United States
temporarily under such conditions as he may prescribe only on a case-by-case
basis for urgent humanitarian reasons or significant public benefit any alien
applying for admission to the United States....5

27

8 U.S.C. 1182(d)(5)(A).

28

In addition to being "inspected and admitted or paroled," aliens must be eligible

to receive an immigrant visa and this visa must be immediately available to
them. 8 U.S.C. 1255(a). Aliens seeking an immigrant visa must first receive
approval of an immigrant petition, which is usually filed by an employer or a
relative. The alien must then wait for and receive an immigrant visa number,
which means that a visa has been assigned.6 Dep't of Homeland Sec.,
Citizenship & Immigration Servs., How do I get an Immigrant Visa Number, at

http://uscis.gov/graphics/howdoi/ immvisa.htm (last modified October 31,

2003).
C. Parole
29

The purpose of parole is to permit a non-citizen to enter the United States

temporarily while investigation of eligibility for admission takes place.7
Congress has ordered certain aliens removed; they are not eligible for parole. 8
U.S.C. 1225(c)(1). Congress has set forth the conditions for parole in the
statute. See 8 U.S.C. 1182(d)(5)(A). Congress authorizes the Attorney
General to allow parole "temporarily under such conditions as he may prescribe
only on a case-by-case basis for urgent humanitarian reasons or significant
public benefit." 8 U.S.C. 1182(d)(5)(A). Accordingly, the Attorney General
has promulgated regulations. 8 C.F.R. 212.5. Under the regulations, aliens in
one of five groups can be paroled for urgent humanitarian reasons or significant
public benefit "provided the aliens present neither a security risk nor a risk of
absconding." 8 C.F.R. 212.5(b). These five groups are: (1) aliens with a
serious medical condition, (2) women who have been medically certified as
pregnant, (3) aliens who are defined as juveniles in certain circumstances, (4)
aliens who will be witnesses in judicial proceedings, and (5) aliens whose
continued detention is not in the public interest as determined by the officials
charged with exercising this discretion. 8 C.F.R. 212.5(b)(1)-(5). In making
their decisions, immigration officers can consider whether the alien has "
[c]ommunity ties" such as close relatives with known addresses. 8 C.F.R.
212.5(d)(2). Arriving aliens who claim asylum and establish a credible fear
with an asylum pre-screening officer can be paroled at the point of entry while
they pursue their asylum application.8

30

A paroled individual is not considered "admitted" into the United States: he is

an "applicant for admission." 8 U.S.C. 1101(13)(B). He is not detained and is
allowed to temporarily enter the United States. However, "when the purposes
of such parole ... have been served the alien shall forthwith return or be returned
to the custody from which he was paroled and thereafter his case shall continue
to be dealt with in the same manner as that of any other applicant for admission
to the United States." 8 U.S.C. 1182(d)(5)(A). It appears from the face of the
statute that the Attorney General has no discretion in this determination. As
soon as the reasons for parole have been served, the individual must be returned
to custody.

31

By statute, paroled individuals 9 are eligible for adjustment of status if they

meet the other statutory eligibility requirements. 8 U.S.C. 1255(a). Section
1255 makes no distinction between those who are in removal proceedings and

those who are not for purposes of adjustment of status.

32

Since the 1960 enactment of section 1255(a), Congress has on several

occasions amended other provisions of 8 U.S.C. 1255 to restrict the class of
people who are eligible to receive adjustment of status. For example, alien
crewmen, aliens continuing or accepting unauthorized employment, and aliens
admitted in transit without a visa are not eligible to adjust status under section
1255(a), unless they fall into limited exceptions to the bar on eligibility. 8
U.S.C. 1255(c). Congress also limited the ability of an alien to adjust status if
the alien is married in the United States while in judicial proceedings. 8 U.S.C.
1255(e)(1).10 Significantly, Congress has never taken parolees, as a group,
out of the class of eligible aliens, despite over a dozen opportunities where
section 1255 was otherwise amended to do so.

33

Parolees, although they are physically present in the United States, are treated
as if they were at the border seeking admission. Before the 1996 IIRIRA
statutory changes, parolees were subject to exclusion proceedings. PostIIRIRA, individuals who are paroled and are seeking asylum are subject to
removal proceedings. As arriving aliens, parolees are subject to removal
proceedings. "[I]f the examining officer determines that an alien seeking
admission is not clearly and beyond a doubt entitled to be admitted, the alien
shall be detained for a [removal] proceeding...." 8 U.S.C. 1225(b)(2)(A).
Parolees are generally not "clearly and beyond a doubt" entitled to admission.
However, as parolees, they are not in detention. Until the final order of
removal, which in some circumstances such as where the applicant is
applying for asylum can take years, paroled aliens in removal proceedings,
such as Succar, live, work and form relationships within the United States.
D. Parolees and Adjustment of Status

34

Before the promulgation of 8 C.F.R. 245.1(c)(8), paroled aliens in exclusion

proceedings had an independent avenue to apply for adjustment of status.11 In
re Castro-Padron, 21 I. & N. Dec. 379, 379-80, 1996 WL 379828 (BIA 1996).
The BIA held that in exclusion proceedings, jurisdiction over an alien's
application for adjustment of status lay with the district director of the
immigration agency, not the IJ. Id. at 379. The Board explained, "[A]pplicants
[in exclusion proceedings] can file their adjustment application with the district
director of the [INS], who has sole jurisdiction over the application and can act
on the application independently of these [exclusion] proceedings." Id. at 380.

35

Historically, the district director had jurisdiction over the adjustment

application of both aliens in deportation proceedings who were admitted and

aliens in exclusion proceedings who were paroled.12 In re Manneh, 16 I. & N.
Dec. 272, 274, 1977 WL 39268 (BIA 1977). In 1961, regulations gave the IJ
the authority in deportation cases to renew admitted aliens' adjustment
applications that were denied by the district director and to adjudicate initial
applications for such aliens in deportation proceedings. Id. With this change,
the district director no longer had authority over adjustment applications once
deportation proceedings began. Id. However, the Board determined that this
enlarged jurisdiction did not apply when the alien was in exclusion
proceedings: the district director retained sole authority for adjustment of status
applications. Id.
36

In 1997, the Attorney General 13 promulgated new regulations, which were said
to implement IIRIRA. The regulations created a new definition for the term
arriving alien:

37

The term arriving alien means an applicant for admission coming or attempting
to come into the United States at a port of entry, or an alien seeking transit
through the United States at a port-of-entry, or an alien interdicted in
international or United States waters and brought into the United States by any
means, whether or not to a designated port-of-entry, and regardless of the
means of transport. An arriving alien remains such even if paroled pursuant to
section 212(d)(5) of the Act....

38

8 C.F.R. 1.1(q).

39

Armed with this new definition of arriving alien, the Attorney General made a
substantive change to the adjustment of status regulations. The Attorney
General made several categories of aliens ineligible to apply for adjustment of
status under 8 U.S.C. 1255(a), including "[a]ny arriving alien who is in
removal proceedings pursuant to section 235(b)(1) or section 240 of the Act." 8
C.F.R. 245.1(c)(8) (emphasis added). It is this particular provision of the
regulation that is challenged before this court.

40

The Attorney General also enacted regulations regarding the proper place for
an eligible individual to file for adjustment of status. A key regulation states:

41

An alien [who believes he or she is eligible for adjustment of status] shall apply
to the director having jurisdiction over his or her place of residence.... After an
alien, other than an arriving alien, is in deportation or removal proceedings, his
or her application for adjustment of status... shall be made and considered only

in those proceedings.... An arriving alien, other than an alien in removal

proceedings, who believes he or she meets the eligibility requirements..., shall
apply to the director having jurisdiction over his or her place of arrival.
42

8 C.F.R. 245.2(a)(1) (emphasis added). A parolee in removal proceedings

thus no longer has the ability to apply before anyone, either the district director
or the IJ, for adjustment of status. By contrast, a parolee who is not in removal
proceedings (as an arriving alien) can, consistent with earlier practice, apply to
the district director for adjustment of status. We are informed that most arriving
alien parolees are placed in removal proceedings. The new regulatory scheme
is, thus, a break from earlier practice.

43

In promulgating 8 C.F.R. 245.1(c)(8) in 1997, the Attorney General explained

the rationale for the new regulation:

44

Consistent with Congress' intent that arriving aliens ... be removed in an

expedited manner through the procedures provided..., the Attorney General has
determined that she will not favorably exercise her discretion to adjust the status
of arriving aliens who are ordered removed....

45

62 Fed.Reg. 444, 452 (January 3, 1997). In an effort to quickly remove aliens,

the regulation aimed to eliminate avenues available to arriving aliens in
removal proceedings that allow such aliens to "delay their removal through an
application for adjustment of status." Id. The Attorney General explained that
an arriving alien will not be able to adjust status within the United States. If an
arriving alien is eligible for an immigrant visa, she will be "required to return to
... her country of residence and request it through the consular process available
to all aliens outside of the United States." Id. The Attorney General believed
that if "the Service decides as a matter of prosecutorial discretion, not to initiate
removal proceedings but to parole the arriving alien, the alien will be able to
apply for adjustment of status before the district director." Id.

46

Under the new regulations, arriving aliens in removal proceedings (regardless

of whether they otherwise meet the statutory criteria for adjustment of status)
must leave the United States and go through consular processing in order to
adjust status; the respondent has represented that this is the only option
available to them. But there are significant limitations even as to this avenue.
Non-citizens are subject to 8 U.S.C. 1182(a)(9)(B)(i), which bars non-citizens
from reentry into the United States for three years if they were unlawfully
present in the United States for more than 180 days but less than one year and
for ten years if they were unlawfully present for more than one year.14 Any

waiver of this statutory bar is in the absolute discretion of the Attorney General.
8 U.S.C. 1182(a)(9)(B)(v). Also, non-citizens who have not been admitted
into the United States are ineligible for voluntary departure. 8 U.S.C.
1229c(a)(4). Following any involuntary removal, they will be ineligible for
readmission for five years unless the Attorney General grants a waiver. 8
U.S.C. 1182(a)(9)(A)(i), (iii). Parolees have, by definition, not been admitted,
and thus will generally be subject to this five year bar for involuntary removal
as well. Denying paroled aliens in removal proceedings the ability to adjust
status within the United States thus creates a significant hardship on these
individuals and their families.
47

Of course, as the Attorney General has stated, the immigration agency in theory
can decide to terminate the removal proceedings in the alien's favor, which
would allow the arriving alien who would then not be in removal
proceedings to apply for adjustment of status before the district director. The
government as prosecutor in the removal proceedings may, in its discretion,
terminate the proceedings in order to permit the alien to apply for adjustment of
status. But as this case demonstrates, the BIA has apparently taken the position
that neither it nor the IJ may suspend or terminate the proceedings for this
purpose without the government's consent.

III.
48

Availability of Judicial Review of Statutory Interpretation Claim

49

The Attorney General first argues that 8 U.S.C 1252(a)(2)(B) precludes

judicial review of the Attorney General's denial of Succar's application for
adjustment of status because the Attorney General, through the promulgation of
8 C.F.R. 245.1(c)(8), made a discretionary determination that arriving aliens
do not merit adjustment of status under 8 U.S.C. 1255. We disagree and
exercise review.

50

Section 1252 provides for judicial review of orders of removal, and sets forth
limitations on this review. The Attorney General relies on 1252(a)(2)(B),
which reads in part as follows:

51

(B) Denials of discretionary relief

52

Notwithstanding any other provision of law, no court shall have jurisdiction to

review

53

(i) any judgment regarding the granting of relief under section... 1255 of this
title

54

8 U.S.C 1252(a)(2)(B)(i). Both the Supreme Court and this court have
consistently rejected arguments that Congress has eliminated judicial review of
the legal question of interpretation of the statute as to whether an alien is
eligible for consideration of relief.15

55

Succar challenges the Attorney General's regulation as being contrary to the

statute; that is a classic issue for the court to decide. The issue presented is a
purely legal question and as such is not within the jurisdictional bar of 8 U.S.C.
1252(a)(2)(B). That is the ruling of Zadvydas v. Davis, 533 U.S. 678, 688,
121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), which exercised judicial review over
a challenge to the extent of the Attorney General's authority to detain an alien
indefinitely under the post-removal-period detention statute because the
authority of the Attorney General to act is "not a matter of discretion" and is
subject to judicial review. So here the challenge goes to the Attorney General's
statutory authority and not his discretion. See Subhan v. Ashcroft, 383 F.3d 591,
594 (7th Cir.2004) (interpreting 8 U.S.C. 1252(a)(2)(B) as preserving
jurisdiction when the decision is not "a judgment denying a request for
adjustment of status" under 8 U.S.C. 1255); see also Montero-Martinez v.
Ashcroft, 277 F.3d 1137, 1141 (9th Cir.2002) (Section 1252(a)(2)(B)(i) does
not preclude review of "purely legal and hence non-discretionary" questions.);
Prado v. Reno, 198 F.3d 286, 288 (1st Cir.1999) (Whether a court can exercise
review depends on the grounds upon which the decision of the BIA rests and
"the precise nature of the claims made in the petition.").

56

Quite literally, the Attorney General did not, under 8 U.S.C. 1252(a)(2)(B)(i),
make "a judgment regarding the granting of relief under section 1255," because
the effect of the regulation is to preclude an alien from even applying for relief
under section 1255. See Subhan, 383 F.3d at 594 (exercising jurisdiction over
the IJ's decision even though the effect of the decision is the same as that of a
denial of an adjustment of status application; the court has jurisdiction because
"the purpose behind [8 U.S.C. 1252(a)(2)(B)(i)] is presumably to shield from
judicial review judgments regarding the propriety of adjusting an alien's status,
and no such judgment has ever been made with regard to the [petitioner]").

57

This court has jurisdiction to review Succar's claim under 28 U.S.C. 1331,
which grants courts general federal question jurisdiction, Reno v. Catholic Soc.
Servs., Inc., 509 U.S. 43, 56, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993), and the
Administrative Procedure Act (APA), which gives a court power to "`hold

unlawful and set aside' not only agency action that is `arbitrary' or `capricious,'
but also agency action that is `otherwise not in accordance with law' or is `in
excess of statutory jurisdiction, authority, or limitations, or short of statutory
right.'" Cousins v. Sec'y of the United States Dep't of Transp., 880 F.2d 603,
608 (1st Cir.1989) (quoting 5 U.S.C. 706(2)(A, C)). "It is `central to the real
meaning of "the rule of law," [and] not particularly controversial' that a federal
agency does not have the power to act unless Congress, by statute, has
empowered it to do so." Transohio Sav. Bank v. Dir., Office of Thrift
Supervision, 967 F.2d 598, 621 (D.C.Cir.1992) (quoting Edward L. Rubin, Law
and Legislation in the Administrative State, 89 Colum. L.Rev. 369, 402 (1989))
(alteration in Transohio). When an agency action is contrary to the scope of a
statutory delegation of authority or is an arbitrary and capricious exercise of
that authority, that action must be invalidated by reviewing courts.
IV.
58

A. Merits: Validity of Regulation Vis--Vis the Statute

59

The question presented is whether the regulation, 8 C.F.R. 245.1(c)(8), is

invalid as clearly contrary to 8 U.S.C. 1255(a) or as an arbitrary or capricious
exercise of the Attorney General's delegated authority. The regulation affects
certain arriving aliens who have been granted parole into the United States and
have also been placed in removal proceedings. As explained above, before
adoption of 8 C.F.R. 245.1(c)(8) in 1997, this category of aliens, if they met
the other statutory requirements, could apply for adjustment of status with the
local district director. The effect of 8 C.F.R. 245.1(c)(8) is to deny eligibility
for relief under 8 U.S.C. 1255 to this category of aliens by precluding
consideration of their applications either before the district director or before an
IJ.

60

Succar and supporting amici 16 launch a three-fold attack on the regulation.

First, they argue the regulation is flatly inconsistent with congressional intent as
expressed in 8 U.S.C. 1255(a) and the legislative history. Alternatively, they
argue there are two possible interpretations of the regulation which must be
adopted to avoid a conflict between the regulation and the statute. Finally, they
argue that the Attorney General has acted ultra vires. Succar argues that 8
U.S.C. 1255(a) expressly mentions persons in parole status (without
restricting that status to those not in removal proceedings) as among those
eligible to apply for adjustment of status, and therefore Congress intends for
any decision made within the Attorney General's admitted discretion to be
made on an individualized basis after an eligible alien applies, not as a
categorical eligibility exclusion. 17

61

The Attorney General defends the regulation, arguing that 8 U.S.C. 1255(a)
expressly states that the decision to grant adjustment of status is subject to the
Attorney General's discretion and that the regulation is no more than a valid
exercise of that discretion. The Attorney General points out that the regulation
does not make all of those in parole status ineligible to apply for adjustment of
status, only those who have been placed in removal proceedings. However, it
was represented in the briefs before this court that the "majority of the intended
beneficiaries of parolee adjustment of status are in removal proceedings." The
Attorney General does not dispute this statement.

62

Paroled individuals must be placed in removal proceedings "if the examining

immigration officer determines that an alien seeking admission is not clearly
and beyond a doubt entitled to be admitted." 8 U.S.C. 1225(b)(2)(A). The
Attorney General argues that the challenged regulation does not effectuate a
final exclusion from eligibility because even though these individuals cannot
apply while they are physically in the United States, the alien can leave the
United States and then apply for an immigrant visa at the embassy or consular
office in his home country.

63

The petitioner responds that the result of such a requirement, contrary to

congressional intent, is that many aliens would be barred from even applying
from outside the country for long periods of time because of the statutory bars
discussed above. 8 U.S.C. 1182(a)(9).18 As we shall see, in enacting section
1255(a) in 1960, Congress expressed an intent that eligible aliens be able to
adjust status without having to leave the United States, to relieve the burden on
the United States citizen with whom the aliens had the requisite family or other
relationship, on the United States consulates abroad, and on the alien. That was
one of the primary purposes of the legislation.

64

The Attorney General also argues that the passage of IIRIRA, Pub.L. No. 104208, 110 Stat. 3009 (1996), altered the immigration laws in many restrictive
ways. Petitioner counters that IIRIRA did indeed tighten restrictions, but points
out that application for adjustment of status by parolees was one of the few
areas untouched. This, the petitioner says, reflected Congress's consistent
understanding that the immigration agency would consider applications for
adjustment of status from parolees, whether in removal proceedings or not.
B. Standard of Review

65

Two points are undisputed: Congress has granted the Attorney General some
degree of discretion to adjust the status of statutorily specified aliens in 8

U.S.C. 1255 and Congress has granted the Attorney General authority to
promulgate regulations which guide the exercise of this discretion. 8 U.S.C.
1103(g)(2). When there is no challenge to whether Congress authorized the
Attorney General to issue regulations, we are faced with only two questions.
66

We first ask whether "Congress has directly spoken to the precise question at
issue." Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If so, courts, as well as the
agency, "must give effect to the unambiguously expressed intent of Congress."
Id. at 842-43. As the Supreme Court has said in the immigration context:

67

The judiciary is the final authority on issues of statutory construction and must
reject administrative constructions which are contrary to clear congressional
intent. If a court, employing traditional tools of statutory construction,
ascertains that Congress had an intention on the precise question at issue, that
intention is the law and must be given effect.

68

INS v. Cardoza-Fonseca, 480 U.S. at 447-48, 107 S.Ct. 1207 (quoting Chevron
USA Inc., 467 U.S. at 843 n. 9, 104 S.Ct. 2778) (internal quotation marks
omitted). "Chevron [] deference to [an agency's] statutory interpretation is
called for only when the devices of judicial construction have been tried and
found to yield no clear sense of congressional intent." Gen. Dynamics Land
Sys., Inc. v. Cline, 540 U.S. 581, 124 S.Ct. 1236, 1248, 157 L.Ed.2d 1094
(2004).

69

In determining whether a statute exhibits Chevron-type ambiguity, and hence

warrants deference to the Attorney General's interpretation of the statute, courts
look at both the most natural reading of the language and the consistency of the
"interpretive clues" Congress provided. Gen. Dynamics Land Sys., Inc., 124
S.Ct. at 1240, 1248. In determining the meaning of a statute, our analysis
begins with the language of the statute. See Leocal v. Ashcroft, ___ U.S. ___,
125 S.Ct. 377, 382, ___ L.Ed.2d ___ (2004) (reversing INS interpretation of
term "crime of violence" in 8 U.S.C. 1227(a)(2)(A)(iii) and 8 U.S.C.
1101(a)(43)(f)). "[W]e construe language in its context and in light of the terms
surrounding it." Id. Another "regular interpretive method" is reference to
statutory history to see if any "serious question ... even about purely textual
ambiguity" is left. Gen. Dynamics Land Sys., Inc., 124 S.Ct. at 1248.

70

However, whenever Congress has left a gap for the agency to fill, then we
reach the second question, for the agency's regulation is "given controlling
weight unless [it is] arbitrary, capricious, or manifestly contrary to the statute."

Chevron USA, Inc., 467 U.S. at 843-44, 104 S.Ct. 2778; see Household Credit
Servs., Inc. v. Pfennig, 541 U.S. 232, 124 S.Ct. 1741, 1746-47, 158 L.Ed.2d
450 (2004).
71

If the statutory terms are ambiguous, then the principle of Chevron deference to
the Attorney General's choice must apply. Cardoza-Fonseca, 480 U.S. at 448,
107 S.Ct. 1207. Indeed, the Supreme Court has said that "judicial deference to
the Executive Branch is especially appropriate in the immigration context
where officials `exercise especially sensitive political functions that implicate
questions of foreign relations.'" INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119
S.Ct. 1439, 143 L.Ed.2d 590 (1999) (quoting INS v. Abudu, 485 U.S. 94, 110,
108 S.Ct. 904, 99 L.Ed.2d 90 (1988)). 19 That said, the court has not hesitated to
reject an INS interpretation as contrary to congressional intent. See, e.g.,
Leocal, 125 S.Ct. at 382; Cardoza-Fonseca, 480 U.S. at 448-49, 107 S.Ct.
1207.
C. Statutory Ambiguity

72

Each party initially argues that the statute is unambiguous, in its favor. The
Attorney General argues that the statute unambiguously grants him discretion
to allow or deny adjustment of status to an alien. One way to exercise that
discretion, the Attorney General argues, is to make certain categories of
otherwise eligible aliens ineligible to apply and so ineligible to warrant the
favorable exercise of the Attorney General's discretion. In the Attorney
General's view, this is the end of the matter.

73

We agree that the statute gives the Attorney General discretion, but disagree
that this ends the analysis as to whether the Attorney General can promulgate
this particular categorical eligibility exclusion. The Supreme Court itself has
ruled that the two questions of discretion as to the ultimate relief and discretion
as to eligibility exclusions are distinct. See Cardoza-Fonseca, 480 U.S. at 44344, 107 S.Ct. 1207 (distinguishing between the discretion in the Attorney
General as to the ultimate decision to grant relief and the underlying process
and criteria for eligibility for relief); see also Goncalves, 144 F.3d at 125
("Analytically, the decision whether an alien is eligible to be considered for a
particular discretionary form of relief is a statutory question separate from the
discretionary component of the administrative decision whether to grant
relief.").

74

The statute, we find, is unambiguous on this issue and that congressional clarity
works against the Attorney General. We reject the respondent's argument that

Congress authorized 8 C.F.R. 245.1(c)(8), making parolees in removal

proceedings ineligible to adjust status, either by "express delegation or the
introduction of an interpretive gap." Pauley v. BethEnergy Mines, Inc., 501 U.S.
680, 696, 111 S.Ct. 2524, 115 L.Ed.2d 604 (1991). Congress has spoken clearly
on the issue of eligibility for adjustment of status and has reserved for itself the
determination of whether a non-citizen should be able to apply for this relief.
The Attorney General cannot promulgate a regulation that categorically
excludes from application for adjustment of status a category of otherwise
eligible aliens; this is contrary to congressional intent in section 1255.
1. Text of the Statute
75

We look first to 8 U.S.C. 1255 itself, which provides:

76

1255. Adjustment of status of nonimmigrant to that of person admitted for

permanent residence

77

(a) Status as person admitted for permanent residence on application and

eligibility for immigrant visa

78

The status of an alien who was inspected and admitted or paroled into the
United States or the status of any other alien having an approved petition for
classification... may be adjusted by the Attorney General, in his discretion and
under such regulations as he may prescribe, to that of an alien lawfully admitted
for permanent residence if (1) the alien makes an application for such
adjustment, (2) the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence, and (3) an immigrant
visa is immediately available to him at the time his application is filed.

79

8 U.S.C. 1255(a) (emphasis added).

80

Congress defined certain categories of aliens who were eligible to apply for
adjustment of status, 8 U.S.C. 1255(a), and refined the definition by
specifically excluding certain aliens from eligibility, 8 U.S.C. 1255(c), (e).
By statute, two categories of aliens are eligible to apply. First is an alien who
was inspected and admitted. Second is an alien who was paroled. 8 U.S.C.
1255(a). The Attorney General's regulation carves out an exception from this
second category of eligible aliens, by making paroled aliens who are placed in
removal proceedings ineligible for adjustment of status relief, even if they
otherwise meet the statutory requirements. 8 C.F.R. 245.1(c)(8).

81

Congress unambiguously reserved to itself the determination of who is eligible

to apply for adjustment of status relief. 8 C.F.R. 245.1(c)(8) conflicts with the
statute in several ways.

82

First, Congress itself explicitly determined categories of aliens (those aliens

who had been "inspected and admitted or paroled") who are eligible for
adjustment of status if they otherwise meet the statutory requirements. 8 U.S.C.
1255(a). Despite numerous amendments to 8 U.S.C. 1255 since 1960,
Congress has not limited the eligibility of paroled aliens under section
1255(a).20 The statute has never stated that an alien is ineligible to adjust status
if he is in removal proceedings.

83

Second, when Congress desired to limit the ability of a non-citizen who might
otherwise have been eligible to apply for adjustment of status under 1255(a), it
has done so explicitly by defining several categories of aliens as not eligible to
apply. For example, alien crewmen, aliens continuing or accepting unauthorized
employment, and aliens admitted in transit without a visa are not eligible to
adjust status under section 1255(a) unless they fall into limited exceptions. 8
U.S.C. 1255(c) ("[S]ubsection (a) [of 8 U.S.C. 1255] shall not be
applicable to....")(emphasis added). Another category of aliens that Congress
has explicitly determined is ineligible to apply for relief under section 1255(a)
is the alien who is seeking to obtain an immigrant visa based on a marriage
entered into while judicial proceedings are pending regarding the alien's right to
be admitted or remain in the United States. 8 U.S.C. 1255(e).21 The statute is
clear that even if these individuals were "inspected and admitted or paroled"
and complied with the other statutory requirements, they are not eligible to
apply.

84

There are two themes. First, Congress explicitly rendered ineligible a certain
category of aliens to apply. Second, that category of excluded aliens included
some in removal proceedings, but Congress chose not to disqualify from
eligibility all of those aliens "inspected and admitted or paroled" in removal or
other judicial proceedings. In those limited circumstances when the
involvement in proceedings works to hamper an individual's ability to adjust
status, Congress has explicitly said so.

85

Third, Congress also has determined that some aliens whom it has deemed
ineligible under 8 U.S.C. 1255(c) might in some limited circumstances still be
eligible for adjustment of status relief. For example, in 8 U.S.C. 1255(i),
Congress allows adjustment of status for certain aliens who entered the United
States without inspection or who are categorized in section 1255(c) of the

statute as being ineligible. Congress states that if these aliens are beneficiaries
of either "(i) a petition for classification under [8 U.S.C. ] 1154 ... that was
filed with the Attorney General on or before April 30, 2001; or (ii) an
application for a labor certification under [8 U.S.C. ] 1182(a)(5)(A) ... that was
filed ... on or before such date," then they "may apply to the Attorney General
for adjustment of ... status to that of an alien lawfully admitted for permanent
residence." See 8 U.S.C. 1255(i).22 When Congress has wanted to impose
special restrictions on the applications for certain categories of aliens that it has
deemed eligible, or conversely to open up eligibility for aliens that were
ineligible, it has done so explicitly. But Congress has imposed no restrictions on
applying for adjustment of status for a paroled alien based on that alien's being
in removal proceedings.
2. Context of the Statutory Scheme
86

The terms and provisions of 8 U.S.C. 1255(a) must be understood in the

larger context of the statutory scheme. The immigration laws about adjustment
of status are not a haphazard compilation of provisions; they are a calibrated set
of rules that govern an area of national importance. Congress in many instances
has specifically determined when to give discretion to the Attorney General and
when to make its own policy choices. Viewing the statutory scheme in this
manner clarifies two things: first, that the exclusion of parolees in removal
proceedings renders ineligible most of the class that Congress rendered eligible
by including parolees (for Congress clearly stated that most parolees would be
in removal proceedings), and second, that the congressional choice to delegate
to the Attorney General some circumscribed discretion over the ultimate
decision of who is granted adjustment of status23 is not authorization for
discretion in other areas.

87

We explain: one policy choice Congress made was to allow (in some instances)
aliens who were otherwise inadmissible on arrival the opportunity to seek
adjustment of status relief if they met certain statutory criteria. See 8 U.S.C.
1255. In 8 U.S.C. 1182, Congress defines the classes of aliens who are
ineligible for visas or admission to the United States and makes various
exceptions from these blanket rules. See 8 U.S.C. 1182(a). Congress also
allows for parole of these inadmissible aliens for "urgent humanitarian reasons"
or "significant public benefit." 8 U.S.C. 1182(d)(5)(A). Congress specifically
says parolees are not considered admitted. Id. Despite their status as
inadmissible, Congress has also made the policy determination that these
paroled aliens should be eligible to apply for adjustment of status, which
essentially can act as an admission. 8 U.S.C. 1255(a).

88

Section 1182 is integral to determinations made in "inspection," which is

provided for in 8 U.S.C. 1225. All arriving aliens and aliens who are present
in the United States without an inspection are "applicants for admission," 8
U.S.C. 1225(a)(1), and they "shall be inspected." 8 U.S.C. 1225(a)(3)
(emphasis added). Section 1225(b) provides for the inspection of aliens
arriving in the United States and certain other aliens who have not been
admitted or paroled. See 8 U.S.C. 1225(b). If aliens being inspected are not
"clearly and beyond a doubt" admissible, under section 1182, then they must be
referred to removal proceedings. See 8 U.S.C. 1225(b)(2)(A).

89

This context shows that Congress purposefully classified paroled individuals as

"inadmissible," and it also determined that they should generally be placed in
removal proceedings. But Congress also explicitly allowed paroled individuals
to adjust status if they meet the other statutory requirements.

90

Further, the larger statutory scheme makes clear that in the context of
adjustment of status, Congress is particular about where it grants "discretion" to
the Attorney General. Congress has specified the conditions under which an
arriving alien (including a paroled alien) is to be determined inadmissible and
must be placed in removal proceedings. The determination as to placing an alien
into removal is not a decision committed to agency discretion by Congress.
Rather, Congress has defined the terms for initiating removal proceedings
against arriving aliens in 8 U.S.C. 1225(b)(2)(A), which provides that,

91

[I]n the case of an alien who is an applicant for admission, if the examining
immigration officer determines that an alien seeking admission is not clearly
and beyond a doubt entitled to be admitted, the alien shall be detained for a
[removal proceeding].

92

8 U.S.C. 1225(b)(2)(A). Congress used the word "shall" to mandate that an

immigration officer who cannot determine that the applicant for admission is
clearly entitled to be admitted has no choice but to place the alien in removal
proceedings. After the alien is placed in removal, the Attorney General may
parole the alien into the United States in some instances,24 but the alien still
must go through removal proceedings. 25

93

The incorrectness of the Attorney General's argument can be seen by looking at

one of its logical implications. The Attorney General is also given discretion as
to the ultimate decision in determining whether to grant asylum to aliens who
are eligible for this relief. 8 U.S.C. 1158(a); Cardoza-Fonseca, 480 U.S. at
443-44, 107 S.Ct. 1207.26 If this grant of discretion meant what the government

argues here, it would be logical that the Attorney General could similarly
decline to allow asylum by issuing a regulation that refused to process
applications from categories of asylum applicants.
94

But that is not so. If the asylum applicant meets the eligibility requirements
if, in other words, the Attorney General determines that an applicant for asylum
establishes she has "a well founded fear of persecution" on account of one of
the statutory grounds the alien must be allowed to apply. The Attorney
General may only exercise his discretion in granting the asylum.27 8 U.S.C.
1158(b); 8 U.S.C. 1101(a)(42)(A). Similarly, if the paroled adjustment of
status applicant meets the eligibility requirements, the Attorney General may
exercise his discretion only in the decision whether to grant permanent resident
status. In both asylum and adjustment of status, an alien who satisfies the
eligibility requirements to apply "does not have a right to the [relief]," but he is
"eligible" to apply for it. Cardoza-Fonseca, 480 U.S. at 443-44, 107 S.Ct. 1207
(emphasis removed).

95

Although the regulation, 8 C.F.R. 245.1(c)(8), denying adjustment of status to

parolees in removal proceedings is itself framed in terms of who is eligible to
apply, the Attorney General argues the regulation is simply a determination at
the outset that of the eligible parolees, the Attorney General will not exercise its
discretion favorably to those who are in removal proceedings. The Attorney
General relies on Lopez v. Davis, 531 U.S. 230, 121 S.Ct. 714, 148 L.Ed.2d 635
(2001), for the proposition that categorically excluding otherwise eligible
individuals is an appropriate use of his discretion as to the ultimate decision
granted in 8 U.S.C. 1255(a).

96

Lopez is distinguishable. In Lopez, the Supreme Court upheld a regulation of

the Bureau of Prisons (BOP), 28 C.F.R. 550.58(a)(1)(vi)(B), which
categorically denied early release to prisoners whose current offense was a drug
felony involving the carrying, possession, or use of a firearm. See Lopez, 531
U.S. at 233, 121 S.Ct. 714. The relevant statute states, "The period a prisoner
convicted of a nonviolent offense remains in custody after successfully
completing a treatment program may be reduced by the [BOP], but such
reduction may not be more than one year from the term the prisoner must
otherwise serve." 18 U.S.C. 3621(e)(2)(B). The Supreme Court framed the
question as whether "the Bureau has discretion to delineate, as an additional
category of ineligible inmates, those whose current offense is a felony
involving a firearm." Lopez, 531 U.S. at 238, 121 S.Ct. 714. The Court
answered this question in the affirmative, agreeing with the BOP that "Congress
simply did not address how the Bureau should exercise its discretion within the
class of inmates who satisfy the statutory prerequisites for early release." Id. at

239-40, 121 S.Ct. 714 (internal quotation marks omitted). The Court noted:
97

Beyond instructing that the Bureau has discretion to reduce the period of
imprisonment for a nonviolent offender who successfully completes drug
treatment, Congress has not identified any further circumstance in which the
Bureau either must grant the reduction, or is forbidden to do so. In this familiar
situation, where Congress has enacted a law that does not answer "the precise
question at issue," all we must decide is whether the Bureau, the agency
empowered to administer the early release program, has filled the statutory gap
"in a way that is reasonable in light of the legislature's revealed design."

98

Id. at 242, 121 S.Ct. 714 (emphasis added)(quoting NationsBank of N.C., N.A.
v. Variable Annuity Life Ins. Co., 513 U.S. 251, 257, 115 S.Ct. 810, 130
L.Ed.2d 740 (1995)). In the face of congressional silence, the Court held that it
was not unreasonable for the BOP to exercise its discretion and exclude a class
of prisoners as ineligible for early release. Id. at 242-43, 121 S.Ct. 714.

99

By contrast, Congress has not been silent here. There are differences in the two
statutes. In the adjustment of status statute here, Congress made numerous and
explicit policy choices about who is eligible for adjustment of status relief, who
is ineligible, and of those ineligible, who is nonetheless eligible with certain
application restrictions. See 8 U.S.C. 1255(a) (setting out basic eligibility
requirements for adjustment of status); 8 U.S.C. 1255(c), (e) (limiting the
eligibility of otherwise eligible aliens); 8 U.S.C. 1255(i) (allowing eligibility
to otherwise ineligible aliens). The statutory immigration scheme also
constrains the Attorney General's discretion in several ways, including
mandating when an arriving alien must be placed in removal proceedings, 8
U.S.C. 1225(b)(2)(A), limiting the discretion of the Attorney General to
parole aliens, 8 U.S.C. 1182(d)(5), and denying the Attorney General the
ultimate discretion to adjust the status of some otherwise eligible aliens, 8
U.S.C. 1255(f). Lopez is a Chevron step two case because of congressional
silence; our case, however, is a Chevron step one case because Congress has
clearly spoken on the issue of eligibility. We find the Attorney General's
regulation to be inconsistent with that congressional determination. See
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 91, 122 S.Ct. 1155, 152
L.Ed.2d 167 (2002).28

100 From the language and structure of the statute alone, we find the regulation to
be inconsistent with the expressed intent of Congress.29 Still, we do not lightly
overturn regulations.

D. Legislative History
101 Questions have been raised about the appropriateness of use of legislative
history at stage one of the Chevron analysis. See, e.g., Coke v. Long Island
Care at Home, Ltd., 376 F.3d 118, 127 (2d Cir.2004). In fact, the Supreme
Court has often referred to legislative history at stage one, most recently in Gen.
Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 124 S.Ct. 1236, 1243, 157
L.Ed.2d 1094 (2004), and in a series of earlier cases. See FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d
121 (2000) (using "later [congressional] Acts" which spoke "more specifically
to the topic at hand" to determine whether the statute evidenced a clear
congressional intent in Chevron step one); MCI Telecomms. v. AT & T, 512
U.S. 218, 232-33, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994) (examining
legislative histories of later enactments and finding them inconclusive); Pauley,
501 U.S. at 697-99, 111 S.Ct. 2524 (examining the text of statute and
legislative history to determine that Congress intended to delegate to the agency
broad policymaking discretion); Pension Benefit Guar. Corp. v. LTV Corp.,
496 U.S. 633, 648-50, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) (using
legislative history in Chevron step one as another "traditional tool[ ] of statutory
construction" to conclude that the statute did not "evince a clear congressional
intent"); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 214, 109 S.Ct. 468,
102 L.Ed.2d 493 (1988) (using legislative history as a check where statutory
text is clear that the Secretary had no authority); Japan Whaling Ass'n v. Am.
Cetacean Soc'y, 478 U.S. 221, 233-41, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986)
(examining legislative history and determining that Congress has not directly
spoken to the issue).30
102 Our view is that where traditional doctrines of statutory interpretation have
permitted use of legislative history, its use is permissible and even may be
required at stage one of Chevron. This appears to be the functional approach of
some other circuits as well. See Coke, 376 F.3d at 127 (using legislative history
at step one "without attaching primacy" to it); Am. Rivers v. F.E.R.C., 201 F.3d
1186, 1196 & n. 16 (9th Cir.2000) (adhering to the practice of considering
legislative history in Chevron step one).
103 Our approach encompasses the traditional rule that where the plain text of the
statute is unmistakably clear on its face, there is no need to discuss legislative
history. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 481, 119 S.Ct. 2139,
144 L.Ed.2d 450 (1999). Sutton, however, does not go on to say that resort to
legislative history is impermissible where used as a check on the understanding
of the statute as viewed in light of its text and the statutory scheme as a whole.
Even the dissent in General Dynamics admits that legislative history may

confirm whether the plain text reading is correct. Gen. Dynamics Land Sys.,
Inc., 124 S.Ct. at 1252 (Thomas, J., dissenting) ("Although the statute is clear,
and hence there is no need to delve into the legislative history, this history
merely confirms that the plain reading of the text is correct."). Indeed, Justice
Thomas's dissent (joined by Justice Kennedy) itself considers legislative
history. Id. at 1252-55; see also Pension Benefit Guar. Corp., 496 U.S. at 649,
110 S.Ct. 2668; Bowen, 488 U.S. at 214, 109 S.Ct. 468 (using legislative
history as a check where statutory text is clear that the Secretary had no
authority); Japan Whaling Ass'n, 478 U.S. at 233-41, 106 S.Ct. 2860 (looking
at legislative history to see whether it contradicts implicit grant of authority to
agency in statutory text).
104 This circuit has used the approach of considering legislative history in Chevron
stage one analysis where appropriate to discern and/or to confirm legislative
intent. See Goldings v. Winn, 383 F.3d 17, 21 (1st Cir.2004) ("If the language
of the statute is plain and admits of no more than one meaning or if the statute's
legislative history reveals an unequivocal answer as to the statute's meaning, we
do not look to the interpretation that may be given to the statute by the agency
charged with its enforcement") (emphasis added) (quoting Arnold v. United
Parcel Serv., Inc., 136 F.3d 854, 858 (1st Cir.1998)); Arnold, 136 F.3d at 858
(resorting to legislative history when the text of the statute is not
unambiguously clear); see also Strickland v. Comm'r, Maine Dept. of Human
Servs., 48 F.3d 12, 17, 20 (1st Cir.1995) (examining legislative history, "albeit
skeptically," in Chevron step one).
105 The perceived dangers of the use of legislative history are particularly lessened
where the legislative history is used as a check on an understanding obtained
from text and structure. As we shall see, the legislative history, which is not
disputed by the respondent, seems to pose none of the problems of potential
manipulation of the system by members of Congress. See Strickland, 48 F.3d at
17 n. 3 (reciting the arguments of critics that "legislative history is written by
staffers rather than by Congress itself; that it is easily manipulated; that it
complicates the tasks of execution and obedience; and that it often is shaped by
members of Congress who cannot achieve passage of a desired interpretation in
the actual text of an enacted statute").
106 In light of Supreme Court case law there is no reason to think legislative history
may not play other roles then simply confirming a reading obtained by text and
structure at stage one.31 Our use of the legislative history in that fashion is, we
think, unexceptional.
107 We look to legislative history to check our understanding and determine

whether there is a clearly expressed intention by the Congress which is contrary

to the plain language of the statute. See Cardoza-Fonseca, 480 U.S. at 432 & n.
12, 107 S.Ct. 1207. Petitioner argues that the legislative history evidences
Congress's intention to give parolees, regardless of whether they were in
removal proceedings, the ability to adjust status and that this intention is
consistent with the goals Congress wanted to accomplish in enacting the
legislation.
The INA, enacted in 1952, allowed "[t]he status of an alien who was lawfully
108 admitted to the United States as a bona fide nonimmigrant" to be adjusted to
that of permanent resident alien if the alien met certain other eligibility
requirements. Pub.L. No. 414, 66 Stat. 163, 217 (1952).
109 The version of 8 U.S.C. 1255(a) relevant to this case was established in 1960,
when Congress amended 8 U.S.C. 1255 to include paroled aliens as eligible
for adjustment of status. Pub.L. No. 86-648, 74 Stat. 504, 505 (1960). At the
time the amendment was passed, the statutory provision for the granting of
parole to certain inadmissible aliens was substantially similar to the statute
governing parole today.32
110 The legislative history of the 1960 amendments is explicit that Congress
recognized numerous problems with the process for adjustment of status under
the 1952 law and believed these problems were of serious concern. The Senate
Report states:
111 The Administrative Operations in the application of [the adjustment of status
provision], and other related features of the General Immigration Law
regarding adjustment of status of aliens within the United States, have been the
subject of close scrutiny by the Committees on the Judiciary of both the Senate
and the House of Representatives. For a considerable period of time, there has
appeared to be a steadily mounting number of cases in which aliens determined
by the Immigration and Naturalization Service to be eligible for permanent
residence in the United States in accordance with all the applicable provisions
of the Immigration and Nationality Act, had to comply with what appeared in
those cases to be an unnecessary procedure known as preexamination and
voluntary departure with a view toward applying for an immigrant visa in one
of the U.S. Consular Offices in Canada. During the Fiscal Year ending June 30,
1958, more than 7,000 aliens in the United States had their eligibility to enter as
immigrants determinated in this country prior to sending them to Canada where
they briefly appeared before a U.S. consular officer, and then returned to this
country with an immigrant visa.

112 In addition, the review of a considerable number of private relief immigration

bills seeking adjustment of status of nonimmigrants has further demonstrated to
the Committee the desirability of general amendatory legislation on this
subject.
113 S.Rep. No. 86-1651 (1960), reprinted in 1960 U.S.C.C.A.N. 3124, 3136.
114 The Report states that Congress, in amending the adjustment of status statute,
wished to avoid a situation that,
115 not only necessitate[s] the reinstatement of the fallacious procedure known as
`preexamination' and consisting of round trips to Canada for the sole purpose of
obtaining an immigrant visa, but will certainly greatly increase the number of
private bills. The Congress has repeatedly expressed its disapproval of the
`preexamination' procedure and has similarly expressed its dissatisfaction with
the mounting volume of private legislation.
116 Id. at 3137.
117 In response to those problems, Congress in 1960 amended the adjustment of
status provision. The new provision read: "The status of an alien, other than an
alien crewman, who was inspected and admitted or paroled into the United
States may be adjusted... to that of an alien lawfully admitted for permanent
residence...." 74 Stat. at 505. This change broadened the category of individuals
eligible for adjustment of status relief. S.Rep. No. 86-1651 (1960), reprinted in
1960 U.S.C.C.A.N. 3124, 3125.33
118 In changing the system, Congress sought to ameliorate three types of problems
caused by the old system. Congress wished to eliminate the burden on inspected
and admitted or paroled aliens and their American relatives of having to leave
the United States and apply from a consular office abroad (often from
Canada).34 See id. at 3137 ("Aliens eligible to benefit from this legislation ...
would also save the expense of journeys to Canada, rather high when
consideration is given to the fact that many of the prospective eligible
immigrants live with their families in areas rather remote from the U.S.
Consular offices in Canada.").
119 Congress was also concerned with the costs to the government of the then
extant system, caused by the large number of private bills presented to it for
adjustment of status for named individuals. Congress had repeatedly expressed
its "dissatisfaction with the mounting volume of private legislation" introduced

to adjust the status of certain aliens. Id. at 3137. By adopting the 1960
legislation, Congress wished to alleviate this burden on itself. See id. at 3136.
There is some evidence in the legislative history that Congress wished also to
alleviate the burden imposed on consular offices to process applications for
adjustment of status. The Senate Report emphasizes that in fiscal year 1958,
alone, over 7,000 individuals had to leave the United States and apply for a visa
in Canada. Id. Indeed, the Department of State commented on the legislation.
Finally, in expanding the group of individuals eligible for adjustment of status,
120 Congress clearly evaluated the administrative inconvenience to the INS of the
expanded category of those eligible to apply for adjustment of status and
nonetheless altered the prior procedure. Indeed, the administrative burdens of
the various provisions involved were given "close scrutiny" by Congress. Id.
121 The effect of the regulation before us, limiting the ability of paroled aliens in
removal proceedings to adjust status, will predictably be to re-institute the very
problems which Congress attempted to eliminate in 1960. It forces paroled
aliens in removal proceedings to leave the country to apply for adjustment of
status. This imposes considerable burdens on the aliens and, where applicable,
their American spouses and relatives. The effect of the regulation, predictably,
will be to increase the number of private bills seeking individual adjustment of
status, thus burdening Congress. It will also increase the burden on consular
offices abroad, because aliens who are otherwise available to adjust status will
now have to apply through the consular office.
122 The 1960 legislative history of 8 U.S.C. 1255(a) confirms and enhances our
understanding of the statute.
E. Effect of IIRIRA
123 We consider briefly the arguments of both sides that rely on later revisions to
the INA, specifically IIRIRA, to support their different understandings of what
Congress meant in the adjustment of status provisions of 8 U.S.C. 1255.
There is no claim that section 1255(a) was amended by IIRIRA or any other
statute in any relevant way.
124 The Attorney General relies on provisions of IIRIRA to argue that the original
understanding of the statute in 1960 must be altered in light of later law, and the
statute must now be read as introducing at least ambiguity into section 1255(a),
despite the fact that section 1255(a) itself was not amended. The Attorney
General argues that new regulations were required due to IIRIRA's replacement

of "entry" with "admission" as the criterion which determines which of two sets
of grounds of removal, 8 U.S.C. 1882(a) or 8 U.S.C. 1227, applies in
removal proceedings. Further, the Attorney General argues, under 8 U.S.C.
1182(d)(5)(A), a parole of an alien is not the admission of that alien.
125 Our earlier analysis of the meaning of 8 U.S.C. 1255(a) in light of the
statutory context takes into account the statutory scheme as it exists under
IIRIRA. The Attorney General's arguments do not change this understanding;
they are unpersuasive because they do not concern the eligibility of paroled
aliens to apply for adjustment of status under section 1255(a) or in any way act
to limit the eligibility of paroled individuals a group Congress specifically
deemed eligible to adjust status. The classification of paroled aliens as "not
admitted" is not new to the passage of IIRIRA and does not change the
treatment of parolees. Also, the reclassification of aliens "present pursuant to an
entry" to "applicants for admission" does not affect the status of paroled aliens,
who have always been considered applicants for admission.
126 The petitioner relies on IIRIRA for two points. Specifically, the petitioner
argues that since 1960 the agency and Congress have consistently understood
the statute to be as petitioner reads it. Moreover, in the major revisions of the
immigration laws since 1960, which largely restricted aliens' efforts to remain
in this country, Congress has never once restricted the ability of paroled aliens
to apply for adjustment of status.
127 This confirms our understanding of the clear meaning of the statute.35
Consistent with our interpretation of the statute, in our view, the changes to the
statute with the passage of IIRIRA work against the Attorney General's
argument, not in favor of it. Under IIRIRA and previous amendments, Congress
amended section 1255 to limit the eligibility for adjustment of status so that
certain types of aliens may not apply. Historical & Statutory Notes, 1996
Amendments, 8 U.S.C.A. 1255. Congress has directly addressed the issue of
eligibility for adjustment of status on several occasions, yet these amendments
did not limit the category of paroled aliens who may apply for adjustment of
status, and they neither gave the Attorney General discretion to redefine
eligibility nor did they endorse the additional restrictions on eligibility
contained in the Attorney General's regulation. See Brown & Williamson
Tobacco, Corp., 529 U.S. at 137, 120 S.Ct. 1291 (relying in part on later
actions of Congress which specifically address the regulation of tobacco as
evidence that the FDA did not have authority to regulate tobacco).
F. Reasonableness

128 Many of the Attorney General's arguments go to the reasonableness of the

regulation. This is a Chevron step two argument. But as previously explained,
this is a Chevron step one case, and even the Attorney General's reasonable
actions cannot control in the face of clear contrary congressional intent.
129 Even where there is ambiguity, reasonableness is assessed in light of the
statutory scheme. For example, the Attorney General justifies the regulation on
the basis that the exercise of discretion was consistent with Congress's desire to
speed up the removal process through expedited removal proceedings. 62
Fed.Reg. 444, 452 (Jan. 3, 1997). The desire for administrative efficiency
cannot displace clear congressional intent.
130 Also, the Attorney General argues he has a facially legitimate and bona fide
reason for the regulation, citing to the Immigration Control and Financial
Responsibility Act of 1996,36 which was intended to "increase control over
immigration ... expediting the removal of excludable and deportable aliens,
especially criminal aliens, and reducing the abuse of parole and asylum
provisions."37 S.Rep. No. 104-249 at 2 (1994) (not reported in U.S.C.C.A.N.).
The short reply is that Congress did not, even in 1996, give the Attorney
General unfettered discretion to expedite removal and reduce abuse of parole in
disregard of the statutory scheme. Congress expressly did not alter the basic
structure of eligibility for application for adjustment of status while
simultaneously making a limited category of parolees ineligible. See CardozaFonseca, 480 U.S. at 444-45, 107 S.Ct. 1207 (noting the agency cannot ignore
Congress's desired scheme in the asylum area).
131 Finally, the position that the Attorney General takes in the 1997 regulation is
inconsistent with the agency's long-standing previous practice. Arriving aliens
in removal proceedings were always able to adjust status before the district
director prior to the promulgation of the 1997 regulations. See In re CastroPadron, 21 I. & N. Dec. 379, 1996 WL 379828 (BIA 1996). As noted in
Cardoza-Fonseca,"An additional reason for rejecting the [Attorney General's]
request for heightened deference to [his] position is the inconsistency of the
positions the [agency] has taken through the years. An agency interpretation of
a relevant provision which conflicts with the agency's earlier interpretation is
`entitled to considerably less deference' than a consistently held agency view."
Cardoza-Fonseca, 480 U.S. at 446 n. 30, 107 S.Ct. 1207 (quoting Watt v.
Alaska, 451 U.S. 259, 273, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981)). So even if
there were ambiguity in section 1255(a), the agency would be entitled to less
than normal deference.
V.

132 We find the regulation, 8 C.F.R. 245.1(c)(8), to be invalid as inconsistent with

8 U.S.C. 1255(a); accordingly we vacate the removal order and remand the
case to the BIA for proceedings consistent with this opinion. So ordered.

Notes:
1

In March 2003, the relevant functions of the INS were transferred to the
Department of Homeland Security and reorganized into the Bureau of
Immigration and Customs Enforcement. We refer to the immigration agency
throughout as the INSMukamusoni v. Ashcroft, 390 F.3d 110, 113 n. 1 (1st
Cir.2004).

8 C.F.R. 245.1(c)(8) is identical to 8 C.F.R. 1245.1(c)(8). Section 245.1(c)

(8) applies to the immigration agencies in the Department of Homeland
Security. Section 1245.1(c)(8) applies to the Executive Office for Immigration
Review in the Department of Justice. This case concerns the validity of 8
C.F.R. 245.1(c)(8)

The BIA also affirmed Succar's order of removal. The Board agreed with the IJ
"that [Succar] has failed to meet his burden of proof in that he was not credible
and did not provide detailed testimony with which to conclude that he was or
would be persecuted upon return to Lebanon." The BIA also rejected Succar's
claim that the translation during the evidentiary hearing was inadequate,
finding that there was "no evidence to suggest that the respondent was
precluded from presenting testimony or that he was somehow prejudiced."
Succar does not challenge the BIA's affirmance on the merits of the order of
removal in this court, but does challenge the order of removal insofar as it
precludes decision in the United States of his adjustment of status application.
The respondent makes no argument that this somehow removes from the case
the issue of the validity of the regulation, but defends on the merits

An "applicant for admission" may be physically present in the country but not
yet have "entered" for immigration purposes

The exceptions to the parole authority of the Attorney General do not apply to
this case. The limitation from subparagraph B states that an alien who is a
refugee cannot be paroled "unless the Attorney General determines that
compelling reasons in the public interest with respect to that particular alien
require that the alien be paroled into the United States rather than be admitted
as a refugee under section 1157 of the title." 8 U.S.C. 1182(d)(5)(B). The
other limitation deals with aliens who are crewmen serving in good faith on
board a vesselSee 8 U.S.C. 1184(f).

There are three types of immigrant visas available: (1) family-sponsored

immigrant visas, (2) employment-based immigrant visas, and (3) diversity
immigrant visas. 8 U.S.C. 1151(a)(1), (2), (3). For immediate relatives of
United States citizens, including spouses, parents, and unmarried children under
the age of 21, an immigrant visa number is automatically available upon
approval of the visa petition. Dep't of Homeland Sec., Citizenship &
Immigration Servs.,How do I get an Immigrant Visa Number?, at
http://uscis.gov/graphics/howdoi/immvisa.htm (last modified October 31,
2003). All other individuals seeking visas based on familial relationships and
individuals seeking to receive visas based on employment must wait for a visa
number. These numbers come available in order of preference for different
types of relationships and employment. 8 U.S.C. 1153(a), (b)(1). As for
relationships, first priority is given to unmarried sons and daughters of United
States citizens over the age of 21. 8 U.S.C. 1153(a). In the employment
context, first priority is given to workers with extraordinary abilities, professors
and researchers, and certain multinational executives and managers. 8 U.S.C.
1153(b).

There are several types of parole. In 2003, 70% of all parolees were paroled
under the most common type of parole, port of entry parole. Dep't of Homeland
Sec., Office of Immigration Statistics,2003 Yearbook of Immigration Statistics
83. Port of entry parolees are "authorized at the port upon alien's arrival; [port
of entry parole] applies to a wide variety of situations and is used at the
discretion of the supervisory immigration inspector, usually to allow short
periods of entry." Id. at 190. Advance parole is a second type of parole; it is
issued to an alien residing in the United States who has an unexpected need to
travel abroad and whose conditions of stay do not otherwise allow for
readmission to the United States. Id. Deferred inspection parole is conferred by
an immigration inspector when aliens appear with documentation, but after
preliminary examination some questions remain about their admissibility. Id.
The three other types of parole are humanitarian parole, granted in instances of
medical emergency; public interest parole, granted for aliens participating in
legal proceedings; and overseas parole, which is granted, usually by special
statute, to individuals while they are in their home country to allow them to
enter the United States.

A report to Congress governing the use of the Attorney General's parole

authority indicates that aliens establishing a credible fear of persecution can be
and often are paroled into the United States while they seek asylum.
Immigration & Naturalization Serv.,Report to Congress: Use of the Attorney
General's Parole Authority Under the Immigration & Nationality Act: Fiscal
Years 1998-1999, 8 (2003), available at http://
uscis.gov/graphics/repsstudies/parolerpt9899.pdf.

Succar's application was made during the removal proceedings and the
respondent makes no argument that Succar's parole was revoked

10

The respondent does not argue that Succar is ineligible to adjust status on the
ground that he entered into his marriage while his removal proceedings were
pending. Regardless, it appears from the record that Succar fits within the
exception to this prohibition, 8 U.S.C 1255(e)(3), as he was granted approval
of the I-130 petition, filed by Succar's wife on his behalf, and the request for a
bona fide marriage exemption
The respondent's only argument as to why Succar is ineligible to adjust status is
the Attorney General's regulation denying adjustment of status to arriving
aliens (including parolees) in removal proceedings.

11

Upon a clarification request from this court on the law prior to the passage of
the regulation in question, the Attorney General joined in a letter with the
petitioner which explained that prior to 1997, arriving aliens in exclusion
proceedings who were statutorily eligible for adjustment of status could apply
to the district director for this relief

12

The pre-1997 regulations allowed one subcategory of parolees, advanced

parolees, to bring an initial application for adjustment of status before the IJ and
to renew before an IJ applications for adjustment of status previously denied by
the district directorIn re Castro-Padron, 21 I. & N. Dec. 379, 380, 1996 WL
379828 (BIA 1996). Advanced parolees were aliens who had been granted
advance parole before leaving the United States. They then left, returned, and
were now in exclusion proceedings. They were treated the same as admitted
aliens in deportation proceedings, meaning that they could apply to the IJ for
adjustment of status. The Board held that this regulation did not apply to other
paroled aliens who were arriving for the first time and were placed in exclusion
proceedings they continued to be limited to pursuing their adjustment
applications before the district director only. Id.

13

The Attorney General at the time of the promulgation of this regulation was
Janet Reno. Successor Attorney General, John Ashcroft, chose to defend this
regulation

14

Succar asserts that he would be barred from reentry into the United States for
ten years, and the government does not contend otherwise

15

A decision by the Attorney General on the merits of the application for

adjustment of status under 8 U.S.C. 1255 is committed to the discretion of the
Attorney General. If the BIA had adjudicated and denied Succar's application

on the merits, and Succar challenged this decision, then, arguably, this court
would not have jurisdiction to review that discretionary determination. This is
not what is at issue here; rather the issue is one of statutory interpretation. The
two questions are distinct
16

Both the American Immigration Law Foundation and the Massachusetts Law
Reform Institute have participated as amici and we acknowledge their able
assistance

17

The majority of petitioner's efforts to attack the statute are unpersuasive. We

explain briefly the futility of these attacks. The Attorney General was expressly
given discretion by the statute and has authority to promulgate regulations, so
that cannot be the basis of an ultra vires attack
If a regulation is unreasonable in light of the statute as either arbitrary and
capricious or as flatly inconsistent with the clear meaning of the statute as
expressed by Congress, the regulation will violate the Chevron doctrine, and
calling the regulation ultra vires in those circumstances adds nothing to the
analysis. See Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
Further, while the doctrine of constitutional avoidance permits a court in some
instances to adopt a particular construction of a law to avoid issues of
unconstitutionality, that doctrine is unavailable here. The claims of petitioner
are based not in the Constitution but in a statute.

18

Others, the petitioner argues, will not be able to return to their home countries
because they fled, fearing persecution there, the basis for their asylum
application. The logical response is that if those aliens prove they are eligible
for asylum or withholding of removal, they may, in the discretion of the
agency, not be removed. They may then apply for adjustment of status

19

The regulations guiding the Attorney General's parole decisions do not allow
for the parole of aliens thought to be a security risk. 8 C.F.R. 212.5(b).
Further, if the arriving alien is thought to be inadmissible because (1) he has
engaged in or is suspected of being a terrorist, 8 U.S.C. 1182(a)(3)(B), (2) he
seeks to enter into the country to engage in actions against the United States
government, 8 U.S.C. 1182(a)(3)(A), or (3) his entry or proposed actions in
the United States would have potentially serious adverse foreign policy
consequences for the United States, 8 U.S.C. 1182(a)(3)(C), the alienshall be
ordered removed, and the order of removal shall be reported to the Attorney
General. 8 U.S.C. 1225(c). The order of removal is subject to limited review
procedures. 8 U.S.C. 1225(c)(2).

20

21

Since 1960, Congress has amended section 1255(a), specifically, two times.
Historical & Statutory Notes, 8 U.S.C.A. 1255. These two amendments do
not have any effect on the eligibility of paroled individuals to adjust status and
are not at issue in this case. Both of these amendments to section 1255(a)
expanded the category of aliens eligible for adjustment of status and in no way
limited the eligibility of a paroled alien to adjust status
This section does not apply if "the alien establishes by clear and convincing
evidence to the satisfaction of the Attorney General that the marriage was
entered into in good faith and in accordance with the laws of the place where
the marriage took place and the marriage was not entered into for the purpose
of procuring the alien's admission as an immigrant." 8 U.S.C. 1255(e)(3)

22

The statute provides that the "Attorney Generalmay accept such application
only if the alien remits with such application a sum equaling $1,000 as of the
date of receipt of the application." 8 U.S.C. 1255(i)(1) (emphasis added).
"Upon receipt of such an application and the sum hereby required, the Attorney
General may adjust the status of the alien to that of an alien lawfully admitted
for permanent residence," if the alien meets certain statutory requirements. 8
U.S.C. 1255(i)(2) (emphasis added). This particular provision gives further
weight to Congress's intention to distinguish between the two steps necessary
for adjustment of status: (1) eligibility to apply and (2) a favorable
determination by the Attorney General. Section 1255(i), unlike the other
provisions governing who is eligible to apply for adjustment of status, seems to
give the Attorney General some discretion over whether these aliens are even
eligible to apply, as well as over the decision whether to adjust.

23

"If the word `discretion' means anything in a statutory or administrative grant of

power, it means that the recipient mustexercise his authority according to his
own understanding and conscience." See Goncalves, 144 F.3d at 125 (quoting
United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-67, 74 S.Ct.
499, 98 L.Ed. 681 (1954)) (internal quotation marks omitted)(alteration in
Goncalves) (emphasis added). This comports with a doctrine articulated by
Judge Jerome Frank in United States ex rel. Adel v. Shaughnessy, 183 F.2d 371
(2d Cir.1950), that where Congress has granted an agency discretion, courts
may intervene when there has been "a clear failure to exercise discretion" (as
well as when that discretion has been abused). Id. at 372. In later formulations,
courts have said that an agency's "failure to ... exercise its discretion, when
properly called upon to do so, is subject to judicial review for arbitrariness and
capriciousness." Wolfe v. Marsh, 835 F.2d 354, 358 (D.C.Cir.1987). Here, the
Attorney General must actually exercise his discretion to determine whether the
paroled individuals that Congress has deemed eligible for adjustment of status
should be granted this relief.

24

The Attorney General's ability to parole arriving aliens, both prior to removal
proceedings and once the individual is placed in removal proceedings, is also
constrained. The Attorney General can parole an alien applying for admission
temporarily into the United States "only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit." 8 U.S.C. 1182(d)(5)(A).
The Attorney General has no authority to allow an individual to remain in
parole once the reasons for the initial parole are exhausted. As soon as a
determination that these reasons are exhausted is made, the individual "shall
forthwith return or be returned to the custody" of the Service. 8 U.S.C.
1182(d)(5)(A)

25

Indeed, where Congress has wanted to benefit aliens from certain countries, it
has enacted special legislation which allows these individuals to enter the
United States and apply for permanent resident status within one year, without
being subjected to removal proceedingsSee Cuban Adjustment Act of 1966,
Pub.L. No. 89-732, 80 Stat. 1161 (1966) (allowing Cuban parolees to adjust
status after one year of residence in the United States); Lautenberg
Amendment, Pub.L. No. 101-167, 103 Stat. 1263 (1990) (allowing parolees
from the former Soviet Union, Vietnam, Laos, or Cambodia to adjust status
after one year of residence in the United States).

26

InCardoza-Fonseca, the Attorney General argued that the greater standard

applicable to withholding of deportation the alien's life or freedom would be
threatened was also the standard applicable to the grant of asylum because it
was anomalous that the standard for asylum, which affords greater benefits,
would be less burdensome than the standard for withholding of deportation.
Cardoza-Fonseca, 480 U.S. at 443, 107 S.Ct. 1207. The Supreme Court
distinguished the two statutes to show why the Attorney General's argument
was misplaced. The Court explained that if an individual makes the stronger
showing and demonstrates that he is eligible for withholding of deportation,
that relief is automatic without any discretion of the Attorney General. By
contrast, if an individual demonstrates the lesser well-founded fear standard to
be statutorily eligible for asylum, the relief was not automatic; it was then up to
the Attorney General to exercise his discretion as to whether to grant the
requested relief. Id. at 443-44, 107 S.Ct. 1207.

27

It is worth noting that the asylum statute as in force at the time it was
interpreted inCardoza-Fonseca, is similar in wording to the adjustment of status
statute. The relevant provision in 1987 read:
[T]he alien may be granted asylum in the discretion of the Attorney general if
the Attorney General determines that such alien is a refugee within the meaning
of section 1101(a)(42)(A) [the well-founded fear standard] of this title.

Cardoza-Fonseca, 480 U.S. at 427, 107 S.Ct. 1207 (quoting 8 U.S.C.

1158(a)).
28

Our holding does not "preclude the [Attorney General] from adopting a
uniform set of criteria for consideration in evaluating applications" for
adjustment of statusLopez, 531 U.S. at 249, 121 S.Ct. 714 (Stevens, J.,
dissenting). We agree that Congress's eligibility determinations do not limit the
considerations that "may guide the Attorney General in exercising [his]
discretion to determine who, among those eligible, will be accorded grace."
Lopez, 531 U.S. at 243, 121 S.Ct. 714 (quoting INS v. Yueh-Shaio Yang, 519
U.S. 26, 31, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996) (internal quotation marks
omitted)).
However, there is one important point: because eligibility is explicit in this
statute, the Attorney General cannot categorically refuse to exercise discretion
favorably for classes deemed eligible by the statute. The agency cannot get in
through the back door of the relief stage what it cannot do at the eligibility
stage. This limitation is consistent with Yueh-Shaio Yang, which did not involve
the agency excluding a class of otherwise eligible aliens. Lopez, 531 U.S. at 248
n. 4, 121 S.Ct. 714 (Stevens, J., dissenting). It involved the question of whether
a classification could be considered at all in the exercise of the Attorney
General's ultimate discretion to grant relief from deportation. Id. Perhaps
whether the alien is in removal proceedings could be a consideration in the
weighing against the favorable exercise of discretion, but it cannot be the basis
of a categorical exclusion.

29

The Attorney General also relies onINS v. Bagamasbad, 429 U.S. 24, 97 S.Ct.
200, 50 L.Ed.2d 190 (1976), to support his argument. There the IJ and BIA
had, without determining eligibility, relied on the petitioner's misrepresentation
to a consular office to deny adjustment of status. The court of appeals
concluded that a determination of eligibility was required nonetheless. The
Supreme Court reversed the court of appeals on the ground that "[a]s a general
rule[,] courts and agencies are not required to make findings on issues the
decision of which is unnecessary to the results they reach." Id. at 25, 97 S.Ct.
200. The case does not provide much guidance here. Petitioner argues only that
Congress, by setting conditions for eligibility, wished there to be case by case
consideration. In Bagamasbad, there was individualized consideration of the
case.

30

The most frequently cited source for a purported rule that reference to
legislative history is impermissible at stage one is Justice Kennedy's statement,
in a footnote, that the use of legislative history in stage one is impermissibleSee
K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 293 n. 4, 108 S.Ct. 1811, 100

L.Ed.2d 313 (1988) (noting in the first step of a Chevron inquiry that "any
reference to legislative history is in the first instance irrelevant"). However,
Justice Kennedy's analysis on this point did not command a majority; only one
other Justice joined. Id. And since the decision in K Mart Corp., Justice
Kennedy has joined the majority opinions in Pension Benefit and Brown &
Williamson Tobacco, both of which utilize legislative history in the Chevron
step one analysis. See Pension Benefit Guar. Corp., 496 U.S. at 649-50, 110
S.Ct. 2668; Brown & Williamson Tobacco Corp., 529 U.S. at 133, 120 S.Ct.
1291. The footnote in K Mart was never authoritative.
31

In fact, the Supreme Court has used legislative history in different ways at stage
one. It has used it merely to confirm plain text readingPension Benefit Guar.
Corp., 496 U.S. at 649, 110 S.Ct. 2668; Bowen, 488 U.S. at 214, 109 S.Ct. 468;
Japan Whaling Ass'n, 478 U.S. at 233-41, 106 S.Ct. 2860. It has used
legislative history to give content to specific statutory terms said to have
different textual meanings. Gen. Dynamics Land Sys., Inc., 124 S.Ct. at 1244
(statutory term "age" in ADEA refers to use of ADEA as a remedy for "unfair
preference based on relative youth"). In Brown & Williamson Tobacco Corp.,
the Supreme Court stressed that "a reviewing court should not confine itself to
examining a particular statutory provision in isolation." 529 U.S. at 132, 120
S.Ct. 1291. In addition to the requirement to read the text in context and in light
of its place in the overall statutory scheme, the court also found permissible
resort to "other Acts, particularly where Congress has spoken subsequently and
more specifically to the topic at hand." Id. at 133, 120 S.Ct. 1291. The court
then explored the legislative history of both the original and later statutes. Id. at
144-55, 120 S.Ct. 1291.

32

"The Attorney General may in his discretion parole into the United States
temporarily under such conditions as he may prescribe for emergent reasons or
for reasons deemed strictly in the public interest any alien...." INA, Pub.L. No.
414, 66 Stat. 188 (1952)

33

The 1960 legislation can be viewed as striking a balance while it broadened

the number of aliens able to apply for adjustment of status, it also defined the
category of aliens eligible so that only the deserving could be considered for the
relief. This structure comports with Congress's concern to allow only worthy
aliens the opportunity to apply for adjustment of status. As the Senate Report
states,
The language of the instant bill has been carefully drawn so as not to grant
undeserved benefits to the unworthy or undesirable immigrant. This legislation
will not benefit the alien who has entered the United States in violation of the
law.

S. Rep. No. 86-1651 (1960), reprinted in 1960 U.S.C.C.A.N. 3124, 3136.

Congress mentioned that it believed that the legislation would benefit mainly
aliens "who[ ] are spouses of U.S. citizens, or skilled specialists whose services
are urgently needed in the United States, or ministers of religious
denominations, or members of other general or special nonquota immigrant
classes." Id. at 3137. Congress also specifically intended to benefit those
individuals who had been paroled into the country as refugees. Id. at 3124.
34

The specific focus of Congress on these problems of who may apply for
adjustment of status and how also indicates that Congress considered the matter
to be important, and so did not leave it to the agencySee Brown & Williamson
Tobacco Corp., 529 U.S. at 159, 120 S.Ct. 1291 (citing Justice Stephen Breyer,
Judicial Review of Questions of Law and Policy, 38 Admin. L.Rev. 363, 370
(1986) ("A court may also ask whether the legal question is an important one.
Congress is more likely to have focused upon, and answered, major questions,
while leaving interstitial matters to answer themselves in the course of the
statute's daily administration.")).

35

When Congress speaks "subsequently and more specifically to the topic at

hand," this can shed light as to the meaning of the statuteBrown & Williamson
Tobacco Corp., 529 U.S. at 133, 120 S.Ct. 1291; see also Monessen
Southwestern Ry. Co. v. Morgan, 486 U.S. 330, 108 S.Ct. 1837, 100 L.Ed.2d
349 (1988) (When Congress has amended a statute in other ways, but not
addressed the specific issue in question, court can consider congressional
silence in the appropriate historical context and use it as evidence of
congressional intent not to abrogate well-established doctrine.).

36

The Immigration Control and Financial Responsibility Act of 1996, SB 1664,

was passed by the Senate on May 2, 1996. It was placed in conference with the
House counterpart, and was the predecessor of what became IIRIRA

37

Legislative history of subsequently enacted statutes "will rarely override a

reasonable interpretation of a statute that can be gleaned from its language and
legislative history prior to its enactment."See Doe v. Chao, 540 U.S. 614, 124
S.Ct. 1204, 1212, 157 L.Ed.2d 1122 (2004). An expressed intent in the
legislative history of a later more general statute can not overcome the
expressed intent in the statute specifically in question.